대명률(大明律)의 죄형법정주의 원칙(罪刑法定主義 原則)

Abstract

In this paper, I researched the principle of nullum crimen, nulla poena sine

lege in the Great Ming Code[大明律] which was the general source of criminal

laws in the Chosun dynasty. In strict meaning, this principle is a historical result

of the modern western society. But it is a declaration of this principle that

detailed crimes and their punishments were provided in laws and codes. In

traditional China, this principle was a device to rule people equally prohibiting

public officials arbitrary punitive authority. So people were protected indirectly

by criminal laws.

In traditional China, this principle was stipulated in the Tang Code[唐律]

compiled in AD 653, and was maintained in the Great Ming Code promulgated

in 1397. In the Great Ming Code, this principle was manifested in the next

articles: Article 45 Deciding Penalties in Accordance with Newly Promulgated

Code[斷罪依新頒律], and Article 439 Citing the Code and the Commandment

in Deciding Penalties[斷罪引律令], Article 38 Principles for Increasing and

Reducing Punishment[加減罪例]. And then in Section 28 Judgment and

Imprisonment[斷獄] of the Great Ming Code, It was compelled for public

officials to obey the laws, if they did not so, they were punished by laws. So

this principle was observed firmly.

But there were exceptions in this principle. They are as follows: Article 46

Deciding Cases without Specific Articles[斷罪無正條] which is an analogy in

interpretation of criminal laws, and Article 409 Violating the Commandment[違

令] which is a punishment without noticing, Article 410 Doing What Ought...